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Coalition blockade against law, UN says

Bianca Hall, David Wroe

Opposition immigration spokesman Scott Morrison and deputy opposition leader Julie Bishop said a Coalition government would use the Australian navy to turn back asylum seeker boats. Photo: Andrew Meares

THE United Nations and international law experts say a Coalition plan to block every Sri Lankan asylum seeker boat from reaching Australian waters, without first testing their passengers' refugee claims, may breach international laws.

In a further sign of the tough policies the Coalition will take to the election, shadow immigration spokesman Scott Morrison said the Australian Navy would be used to prevent with force asylum seeker boats from reaching Australian territorial waters, where they could engage Australia's international refugee protection commitments.

Australia has to be sure it isn't sending asylum seekers back to countries where they will be persecuted.

Australia would also bolster the resources of Sri Lanka's navy to help it stop asylum boats leaving its shores. Mr Morrison claimed forcible returns in international waters would not put Australia in breach of its international laws, because the Refugee Convention did not have extra-territorial powers.

But the United Nations High Commissioner for Refugees said pushing asylum seeker boats back at sea without a proper consideration of an individual's need for protection could place Australia in breach of its international obligations.

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''Any such blanket approach would potentially place Australia in breach of its obligations under the Refugee Convention and other international law obligations, and - as past experience has shown - is operationally difficult and dangerous for all concerned,'' its spokesman said.

Mr Morrison stopped short of saying how he would achieve the forced returns in international waters, saying he did not wish to give a ''heads up'' to people considering legal challenges.

Under refugee laws, Australia cannot forcibly remove boats once they reach Australian waters without first giving asylum seekers the chance to make their case for protection.

The dean of Macquarie University's law school, Natalie Klein, said under the law of the sea Australia did not have authority to board vessels outside its contiguous zone (that is, beyond 24 nautical miles of the Australian coast).

''Once a person has raised a claim of asylum, Australia doesn't escape its obligations because it's operating extra-territorially. Australia has to be sure it isn't sending asylum seekers back to countries where they will be persecuted.''

Professor Klein said Australia could only legally board Sri Lankan boats in international waters if the two countries signed a bilateral treaty.

Mr Morrison, the deputy Liberal leader, Julie Bishop, and opposition border protection spokesman, Michael Keenan, recently returned from a tour of Sri Lanka and said they believed the country was returning to safety after civil war.

The Greens' immigration spokeswoman, Senator Sarah Hanson-Young, said the returns would breach international laws. ''It simply can't be done. It can't be done legally,'' she said.

An international maritime law expert at the Australian National University Don Rothwell said a bilateral agreement with Sri Lanka to allow Australia to return boats in international waters could breach the Refugee Convention, because the Navy would be returning asylum-seekers to the place from which they claimed to be fleeing persecution.

The Navy also would need to be protected by Australian laws to take over boats in international waters, he said.